R v. Secretary of State for the Home Department, Ex parte Sylvester Anthony Kweku Brakwah
| Publisher | United Kingdom: High Court (England and Wales) |
| Author | High Court (Queen's Bench Division) |
| Publication Date | 2 February 1989 |
| Citation / Document Symbol | [1989] Imm AR 366 |
| Type of Decision | CO/1141/88 |
| Cite as | R v. Secretary of State for the Home Department, Ex parte Sylvester Anthony Kweku Brakwah, [1989] Imm AR 366, United Kingdom: High Court (England and Wales), 2 February 1989, available at: https://www.refworld.org/cases,GBR_HC_QB,3ae6b62d34.html [accessed 3 June 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
Queen's Bench Division (Divisional Court)
[1989] Imm AR 366
Hearing Date: 2 February 1989
2 February 1989
Index Terms:
Illegal entrant -- visa national -- granted leave to enter as visitor -- then enrolled as student and worked -- whether material deception on application for visa and on admission -- the distinction between wish and intention. Immigration Act 1971 s 33(1) HC 169 para 21.
Held:
The applicant for judicial review was a citizen of Ghana. He had applied for and been granted a visa as a visitor and was subsequently given leave to enter for six months, with employment prohibited. Shortly after his arrival he enrolled as a student of banking and took part-time work with it seems, the approval of the Department of Employment. After he came to the notice of the authorities and enquiries had been made, the Secretary of State decided that he was an illegal entrant, having deceived both the entry clearance officer and the immigration officer as to his intentions. There was evidence that he had been granted three years' study leave by his employers in Ghana after the grant of the visa and before his departure for the United Kingdom. The applicant had agreed that before he left Accra "it was in my mind [to study] if the conditions are favourable." It was argued before the Court that the applicant had had no more than a wish to study, at the material times. Held: 1. The applicant had been properly categorised as an illegal entrant. 2. While there was a philosophical distinction between a wish and an intention, it was a distinction of no real significance in the case: ". . . somebody who enters wishing to study if he can get into a college and do something if he does get into a college can properly be described as intending to study at the time when he seeks entry to the country."Cases referred to in the Judgment:
Khawaja v Secretary of State for the Home Department [1982] Imm AR 139: [1984] 1 AC 74. Adesina v Secretary of State for the Home Department [1988] Imm AR 442.Counsel:
G Deve for the applicant; D Pannick for the respondent PANEL: Glidewell LJ, Pill JJudgment One:
GLIDEWELL LJ: This is an application for judicial review, namely for an order of certiorari to quash a notice dated 24 July 1988, issued on behalf of the Home Secretary indicating that the applicant is an illegal entrant to this country. I say at once that we propose to refuse the application. The applicant, Mr Sylvester Anthony Kweku Brakwah, is a native and citizen of Ghana. He is now 30 years of age. In January last year he applied for a visa in order to visit the United Kingdom. He is subject to immigration control. He requires leave to enter the United Kingdom if he is to do so under section 3(1) of the Immigration Act 1971, and he comes from a country where a visa is required to be obtained before entry if the immigration officer at the point of entry, Heathrow in this case, is to grant leave to enter. As I have said, he applied for that visa. He filled in an application form and was interviewed by an entry clearance officer. We have a record of that interview, which is quite short. On 1 February 1988 he was granted a visa, entitling him to visit the United Kingdom as a visitor for a short visit. It seems that he was employed by a bank in Accra in Ghana, and he said that he is a married man with two young children. He was asked how long he proposed to stay in the United Kingdom, and he said eight weeks, and he gave the name of a person with whom he wished to stay, whom he described as a friend, and this man had been in the United Kingdom for over fifteen years. As I say, the visa was granted to him on 1 February 1988. He arrived at Heathrow Airport on 26 April 1988, and the stamp in his passport shows that he was given leave to enter for six months as a visitor and a further stamp immediately above the entry stamp says that he was prohibited from taking any employment. The entry stamp indicates that the immigration officer who interviewed him when he arrived on that day was a Mr Horton. Mr Horton has sworn an affidavit, in which he says, not surprisingly, that he has no independent recollection of the applicant, but he says that he would have been concerned to satisfy himself, amongst other things, that the applicant was the person who had been granted the visa in Accra, and nobody suggests that is wrong. Mr Horton continues: "I would also have questioned him closely about his current intentions in the United Kingdom . . ." Mr Deve, who appears for Mr Brakwah, and has said all that can be said on his behalf, accepts that it is clear that his client did say something to the effect that he wished to enter as a visitor. some little time after that, on 24 July 1988, the applicant was working. He had obtained a job with a security firm. This came to the attention of the police. They, not unnaturally, believed that that was a possible breach of the condition of his leave to enter and they therefore went early in the morning on that day to his place of employment and they arrested the applicant and took him to Harlesden Police Station. Whilst he was there a Mr Parle, who is an immigration officer, was asked to go to the police station and he interviewed the applicant on suspicion of having worked in breach of the conditions attached to his leave to enter. As to that, it is right to say that in due course Mr Brakwah was able to produce a document which appears to show that an officer of the Department of Employment did indeed give him permission to take employment, because amongst the documents he exhibits to his own affidavit is a document completed at the Job Centre at Wembley (it does not bear a date), which says: "Permission is given for vacation/freetime employment of 24 hours per week as Security Officer with Guarda Security of Beresford Avenue, Wembley until 26.10.88". That is the job in which he was working when the police arrested him. If that had been the only matter of concern, he appeared to have a good answer to it, at least on the face of it. However, as I have said, he was interviewed by Mr Parle, and Mr Parle's questioning of him elicited more information. He said that he had taken his first job two weeks after arrival as a cleaner. He then gave information about his position in Accra. Then he was asked about the leave he got from his employment. He said this: "Q. How much leave do you get? A. One month per year. Q. Did you take your last year's leave? A. No, I had 21/2 years' leave accrued. Q. How much was that? A. 21/2 months. Q. So that is finished now? A. Yes, but now they will give me leave without pay. Q. Have you asked for this? A. Yes, I wrote to them before I came down, I asked for 3 years leave without pay. Q. Did they grant it? A. I applied for it 3 days before I travelled, they agreed to it one day before I travelled. Q. So before you travelled you had it in your mind to stay here for 3 years? A. If the conditions are favourable for studies. Q. What do you mean by that? A. If I can take week-end jobs and my sister is helping me. Q. Why were you prepared to borrow a sum of money equal to your annual salary to come here for a visit? A. As I said before, it would be worthwhile if I could come here and take some course. Q. So before you applied for the visa it was in your mind to study here? A. It was in my mind if the conditions are favourable. Q. Did you tell the visa officer you were planning to come here to study? A. He didn't ask me so I didn't tell him. Q. Did you tell the immigration officer you were planning to study and work here? A. He didn't ask me. Q. But the officer asked the reason for your visit? A. I had to tell him exactly what I told the perfect gentleman in Accra. Q. But the visa officer also asked the reason for your visit? A. I said I was coming for a 4 week visit. Q. But that wasn't true was it? A. I didn't come here on a fully student status from home . . .". It then transpired when further investigation took place that he had indeed registered as a student at the City Banking College in London South East, and he appears to have been studying there since June 1988 on a course which, if it runs its full term, will last for three years. So he has been both studying and working. It is quite clear from the information which he gave to Mr Parle that when he arrived he already had it in mind that he would like to stay here for three years, if the conditions were favourable for his studies, and that he would do so if he could come here and take a course. It is also clear that despite that he said both to the entry clearance officer and the immigration officer when he arrived at Heathrow that his intention was to come here for a short visit. That is why he was admitted as a visitor. If any further proof of his intention to stay were needed, it was confirmed when the Home Office, through the British High Commission in Accra, made inquiries of his employers and they confirmed that he had been granted three years study leave without pay. The letter authorising this leave was issued on 25 April 1988, the day that the applicant travelled to the United Kingdom. The application for study leave must have pre-dated his departure, but post-dated the grant of the visa. As is well-known, the effect of the decision of the House of Lords in Khawaja [1984] AC 74, is that if an intending entrant into the United Kingdom obtains leave to enter by deception, he is an illegal entrant within the meaning of section 33(1) of the Immigration Act 1971. That phrase is defined in that section as meaning "a person unlawfully entering or seeking to enter in breach of a deportation order or of the immigration laws, and includes also a person who has so entered". That of course brings in a person entering by evading the immigration controls and those who, on the face of it, are granted leave to enter but obtain that leave by deception. Khawaja is now the locus classicus which covers the second group of persons. If such a person or somebody alleged to have obtained entry by deception challenges the conclusion of the Home Office to that effect in this Court, it is established by the decision in Khawaja that it is for the Home Office to prove to the satisfaction of this Court that he did indeed obtain leave by deception. The standard of proof which is required is that the Home Office must prove it on the balance of probabilities. But, owing to the seriousness of the issue before the Court, to quote the speech of Lord Bridge in Khawaja, ". . . the civil standard of proof by a preponderance of probability will suffice, always provided that, in view of the gravity of the charge of fraud which has to be made out and of the consequences which will follow if it is, the court should not be satisfied with anything less than probability of a high degree." What the Home Office allege here, putting it bluntly, is that when Mr Brakwah arrived at Heathrow and said to the immigration officer that he wished to enter as a visitor, he was telling a lie. The Home Office maintain that at that time he had already formed the intention to undertake a course of study if he could find a college or other institution where he could be enrolled as a student, and that his intention thus was not simply to enter as a visitor and leave after a short time, but to stay for the period of the course of study, whatever it might be, and to maintain himself also by working part-time during the course of his study. If it be right that he had that intention and he said that he wanted to enter as a visitor and said nothing about study at all or working, then of course it follows that he did indeed lie. Mr Deve sought to persuade us that there is a difference between intending to do something and wishing to do it and that the most that the Home Office proved was that his client wished to undertake a course of study when he entered but could not say that he intended. That, if I may say so, is a distinction of no real significance in this case. One can understand that philosophically a wish is only the first stage of an intention, but in this case somebody who enters wishing to study if he can get into a college and do something if he does get into a college can properly be described as intending to study at the time when he seeks entry to the country. So the question that arises is precisely the same question as arose in the earlier decision of this Court and of the Court of Appeal in the case of Adesina v Secretary of State for the Home Department [1988] Imm AR 442. Sitting as a member of the Divisional Court of first instance in that case, I said that the question which had to be answered was, "Has the Home Office proved to the required standard, that the applicant lied when he said that he wished to enter for a few weeks as a visitor and was that lie the effective means of obtaining leave to enter?" I read what I said because the question is precisely the same here. The Court of Appeal upheld the decision of the Divisional Court in Adesina. The precise point that arose and was argued in Adesina does not arise and is not argued here. But the basic question to be answered is the same. As in that case, I have no hesitation in this case in concluding that the answer to the question is "yes". The evidence produced by the Home Office shows to my mind beyond a peradventure that Mr Brakwah did intend when he left Accra and arrived at Heathrow and presented himself to the immigration officer to enter this country if he were allowed to do so in order to undertake a course of study. True he had not fixed up a course of study, but he hoped to be able to do that and indeed he proved to be able to do it. He did not intend to enter as a visitor for a short period of time and then return to his own country, Ghana. That being so he comes fairly and squarely within the dicta in the speeches of their Lordships' House in Khawaja. He is an illegal entrant within the meaning of the Act. I find no fault in the decision of the Home Secretary to that effect. I would therefore dismiss this application.Judgment Two:
PILL J: I agree.DISPOSITION:
Application dismissedSOLICITORS:
Cummings-John & Co, London SW7; Treasury Solicitor.Copyright notice: Crown Copyright
